Your Decision: Should Killer Be Executed Or Allowed To Live?

For a couple of minutes, let's pretend that you are part of a jury in a murder case.

Your job is not to determine guilt. That already has been established. The killer confessed and pleaded guilty. There were also witnesses to the crime.

No, what you must decide is whether the murderer should be executed or allowed to live. (If you're against capital punishment, you aren't on the jury. Sorry.)

Under the law of the state in which this crime was committed, the death penalty can be imposed only if the crime falls into certain categories.

I won't go into all of them. But the two that apply here are as follows: The death penalty can be used if the murder was committed to silence a witness to a felony. It also can be imposed if the victim was killed by means of torture.

Now for the facts of the crime. They aren't pleasant.

The killer, age 18, decided that he and some of his friends should rob an elderly couple for whom he had done some odd jobs.

The elderly couple knew and trusted the young man, so they let him into their home. He then admitted his accomplices.

The old people tried to fight them off, but were too weak. The gang tied them to chairs, then ransacked the house.

The leader of the gang didn't want his victims to tell the police about what he had done. So he decided to kill them.

Actually, he had planned to kill them even before he went to their home. He intended to inject air into their veins, so their deaths would look like heart attacks, but he couldn't find a syringe.

His choice of weapon became a knife, which he brought with him.

First, he arranged their chairs so the two old people were facing each other.

Then he yanked back the woman's head and cut her throat. Her husband cried out and wept. He then did the same to the old man.

He left them there, tied to their chairs, watching each other bleed to death.

Then the gang went to split up their loot, which amounted to about $170 each, in cash and used merchandise.

That's it. You, as a juror, must decide if it was a torture murder and whether the murder was committed to silence a witness to a felony.

Take a few moments to think. Are you done? Okay, if you said it was torture and the silencing of a witness, you agreed with an actual Pennsylvania jury that heard this case.

And the jury gave the death penalty to the young man with a knife.

But now it turns out that the killer won't be executed. The Pennsylvania Supreme Court decided that the jury was wrong and sent the case back for a life sentence hearing.

Why was the jury wrong?

I don't have space to print their entire decision, but here are the key points to this display of legal brilliance.

First, the question of whether the victims were killed because they were witnesses to a felony.

If you are as simple-minded as I am, you would say: ''Sure, the two old folks had witnessed their home being invaded by thieves, which is a felony. And the husband witnessed his wife being murdered, which is a felony.''

Ah, but the Pennsylvania Supreme Court said: ''Evidence must be introduced to establish that the victim was a prosecution witness who was killed to prevent his testimony in a pending grand jury or criminal proceeding. . . . No grand jury or criminal proceeding involving an offense to which either of the victims was a prosecution witness was pending at the time the murders were committed.''

In other words, they were not really witnesses to a felony because the invasion of their home or their murders were not yet being investigated. And, of course, once they were dead, they couldn't be witnesses to their own murders.

As for the torture? These murders didn't qualify because, as the court said:

''In order to establish that the offense was committed by means of torture, the Commonwealth must prove that a defendant had a specific intent to inflict unnecessary pain, suffering, or both pain and suffering in addition to the specific intent to kill.

''Although the evidence . . . demonstrates the appellant's specific intent to kill his victims, it is insufficient to establish that the appellant specifically intended to cause pain and suffering or was not satisfied with the killings alone.''

I think that's clear. After positioning his two victims only a few feet apart and facing each other, the killer slashes the wife's throat in full view of her helpless husband.

He then slashes the husband's throat in full view of his helpless and dying wife.

Despite all that, he did not intend to inflict unnecessary pain or suffering.

Well, I won't quarrel with these judges, who are paid for their legal wisdom.

But I wonder what the reaction of one of these judges would be if he found himself strapped into a chair watching his own wife's throat being cut.

Would he say: ''I am in pain and I am suffering. But not unnecessarily so.''